Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01291, Date: 2025-06-05 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01291, Date: 2025-06-05 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 23GDCV01291 Hearing Date: June 5, 2025 Dept: E

Hearing Date: 06/05/2025 – 8:30am
Case No. 23GDCV01291
Trial Date: 08/25/2025
Case Name: MANUELA BEDOYA ALVAREZ, an individual; v. BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company; and MCKENNA MOTOR COMPANY, INC., a California Corporation d/b/a MCKENNA BMW, and DOES 1-10, inclusive

3 TENTATIVE RULINGS – COMPEL RESPONSES

MOTION 1 (Res ID 6152-FROG) RELIEF REQUESTED¿

“Plaintiff, Manuela Bedoya Alvarez (hereinafter “Plaintiff”), will, and hereby does, move for an order compelling responses, without objections, to Plaintiff’s Form Interrogatories (“Interrogatories”).

This Motion is made pursuant to California Code of Civil Procedure, section 2030.290 et seq., on the grounds that Defendant BMW of North America, LLC (“Defendant” or “BMW NA”) has failed to provide any responses to Plaintiff’s Interrogatories, Nos. 1, 3.1, 3.2, 4.1, 12.1 – 12.6, 13.1, 13.2, 14.1, 15.1, 17.1, 50.1- 50.6., which seek general information directly relevant to the suit, Defendant, and the litigation of this matter. Plaintiff therefore seeks an order compelling Defendant to produce responses, without objections, within ten (10) calendar days of the Court’s order.

The Motion is based upon this Notice, the following Memorandum of Points and Authorities, the Declaration of Siyun Yang, the pleadings, and papers on file herein, and upon any other matters that may be presented to the Court at the hearing.”

(Pl. Mot. p. 2.)

MOTION 2 (Res ID 3669-RFP) RELIEF REQUESTED

“Plaintiff Manuela Bedoya Alvarez (“Plaintiff”) will, and hereby does, move for an order to compel responses, without objections, to Plaintiff’s Request for Production of Documents, Set One (collectively, the “RFPs”).

Plaintiff bring this Motion pursuant to California Code of Civil Procedure §§ 2031.310, and 2031.320, on the grounds that Defendant BMW of North America, LLC’s (“Defendant” or “BMW NA”) failed to provide any responses to Plaintiff’s RFPs, which seek documents relevant to their claims under the Song-Beverly Consumer Warranty Act (“SBA”). Thus, Plaintiff seeks an order compelling BMW NA to produce responses, without objections, within 10 calendar days of the Court’s order.

The Motion is based upon this Notice, the following Memorandum of Points and Authorities, the Declaration of Siyun Yang, the papers on file, and upon any other matters that may be presented to the Court at the hearing.

No separate statement is being submitted in support of the instant Motion, as it is not required pursuant to rule 3.1345(b) of the California Rules of Court.”

(Pl. Mot. p. 2.)

MOTION 3 (Res ID 8850-SROG) RELIEF REQUESTED

“Plaintiff, Manuela Bedoya Alvarez (hereinafter “Plaintiff”), will, and hereby does, move for an order compelling responses, without objections, to Plaintiff’s Special Interrogatories (Set One), (“Interrogatories”).

This Motion is made pursuant to California Code of Civil Procedure, section 2030.290 et seq., on the grounds that BMW NA BMW of North America, LLC (“BMW NA” or “BMW NA”) has failed to provide any responses to Plaintiff’s Interrogatories, which seek information directly relevant to the claims under the Song-Beverly Consumer Warranty Act. Plaintiff therefore seeks an order compelling BMW NA to produce responses, without objections, within ten (10) calendar days of the Court’s order.

(Pl. Mot. p. 2.)

Procedural all 3 Motions

Moving Party: Plaintiff, Manuela Bedoya Alvarez

Responding Party: Defendant, BMW of North America, LLC

Moving papers for each motion: Notice/Motion; Yang Declaration; Proposed Order

Opposition papers for each motion: Opposition

Reply papers for each motion: Reply; Yang Declaration

16/21 Day Lapse (CCP §12c and § 1005(b)): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, § 1013b): Ok

LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP § 2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP §2031.300(a).) “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2031.300(a)(1)-(2).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

LEGAL STANDARD – COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP § 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290(b).)

“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §2030.290(a).)

BACKGROUND

Plaintiff, Manuela Bedoya Alvarez, filed the instant action on 6/21/2023.

Plaintiff’s Complaint alleges the first three causes of action – (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2 – against Defendant, BMW of North America, LLC.

Plaintiff’s Complaint alleges the fourth cause of action for negligent repair against Defendant, McKenna Motor Company.

Plaintiff has three motions to compel responses on calendar for 6/5/2025.

Trial is currently set for 8/25/2025.

ARGUMENTS

Plaintiff’s Moving Arguments

Plaintiff moves to compel responses from Defendant, BMW of North America, LLC, to three different sets of discovery (Form Interrogatories, Request for Production of Documents, and Special Interrogatories).

Plaintiff explains that the discovery at issue was served on Defendant on August 22, 2023.

Plaintiff’s counsel (Yang) states that as of the date Yang filed these motions/declarations [April 30, 2025], Plaintiff has not received responses. Plaintiff also specifically notes that it has not received “verified, Code-compliant responses.”

Defendant’s Opposition

In Opposition, Defendant argues that these motions are moot.

Defendant argues the motions are moot because on September 27, 2023, Defendant served substantially code-compliant responses to the discovery at issue in these motions.

Defendant argues that it did not waive objections because it served both initial and amended responses to Plaintiff’s FROGS and SROGS. Defendant argues for RFPs, it provided initial responses, and will soon serve amended responses to all of the RFPs.

Defendant also argues that it did not waive objections because Plaintiff’s sole basis for requesting the waiver of objections by Defendant is that no responses have been provided, but initial responses were already provided.

Defendant also cites to Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651 to argue that lack of verification of discovery responses does not result in waiver of a responding party’s objections to the discovery requests.

Plaintiff’s Reply

In Reply, Plaintiff argues that the instant three motions are not moot.

Plaintiff argues that Defendant’s alleged service of responses on September 27, 2023 were not served properly because Defendant served responses to Plaintiff’s counsel at eservice@quillarrowlaw.com, but Plaintiff’s correct service address is e-service@quillarrowlaw.com.

Plaintiff also argues that even if the September 27, 2023 responses are considered served, objections were waived by Defendant because responses would have been due on September 21, 2023 based on the discovery service date of August 22, 2023. Plaintiff argues that Defendant has never sought relief from waiver of objections.

Plaintiff also argues that even if the September 27, 2023 responses are considered served, Defendant failed to provide verifications for the responses. Plaintiff argues that the Defendant’s Opposition is incorrect to state that verifications have been provided.

TENTATIVE RULING ALL THREE MOTIONS

The Court to hear argument.

Incorrect service of responses to Plaintiff

Plaintiff’s reply argues that Defendant’s responses on September 27, 2023 should not be considered served upon Plaintiff because Plaintiff’s service address is e-service@quillarrowlaw.com, and by Defendant serving eservice@quillarrowlaw.com, Plaintiff has not received Defendant’s September 27, 2023 responses.

The Court will hear argument because it is unclear on whether Plaintiff did not receive the September 27, 2023 responses based on Plaintiff’s counsel’s current Reply Declaration.

Defendant’s September 27, 2023 responses were allegedly served to the following email addresses: (1) kjacobson@quillarrowlaw.com; (2) lserrano@quillarrowlaw.com; and (3) eservice@quillarrowlaw.com.

While Plaintiff is correct to note that Defendant did not service the responses to e-service@quillarrowlaw.com and instead served the responses to eservice@quillarrowlaw.com, the Court has the following question for Plaintiff – what did Plaintiff list as the proper e-service address on September 27, 2023?

As of today, the correct service address of Plaintiff’s counsel according to eCourt is in fact listed as e-service@quillarrowlaw.com; however, was that email listed as the service address on September 27, 2023?

Based on this Court’s recollection, from Quill & Arrow appearing with some regularity before this Court, the Court is aware that Quill & Arrow regularly listed kjacobson@quillarrowlaw.com on eCourt as Plaintiff’s counsel’s email address. The Court further recalls addressing service issues when Quill & Arrow would list kjacobson@quillarrowlaw.com on eCourt as Plaintiff’s counsel’s email address, but then argue at hearings that the proper service address was e-service@quillarrowlaw.com.

Therefore, by Plaintiff’s reply declaration stating that “My office’s electronic service email is e-service@quillarrowlaw.com, instead of eservice@quillarrowlaw.com. I have access to e-service@quillarrowlaw.com,” Plaintiff does not state what its electronic service address was on September 27, 2023.

Or to phrase it differently, Plaintiff’s counsel could have had a different e-service address listed back on September 27, 2023 that is different than the current e-service address. Therefore, it is possible that by Defendant serving responses on September 27, 2023 to following email addresses: (1) kjacobson@quillarrowlaw.com; (2) lserrano@quillarrowlaw.com; and (3) eservice@quillarrowlaw.com, Defendant could have theoretically served the proper email address if one of those email addresses was listed as Plaintiff’s counsel’s email address.

At the hearing, the Court would like Plaintiff to address if it now has Defendant’s responses in its possession. Because Plaintiff’s initial motion explained that it never received initial responses, but in Reply, Plaintiff appears to be stating that it finally received Defendant’s initial responses on May 29, 2025.

Waiver

Setting aside Plaintiff’s argument that it never received the initial responses until May 29, 2025, and assuming that Plaintiff did in fact receive the initial responses on September 27, 2023, Plaintiff’s argument that Defendant waived objections by not responding within 30 days of service of the interrogatories/RFPs appears to be availing.

Plaintiff’s motion indicates that the instant discovery was served on Defendant on August 22, 2023.

Therefore, even assuming that Defendant’s responses of September 27, 2023 were actually properly emailed to Plaintiff, the Court fails to see how Defendant’s responses were timely, and the Court fails to see how Defendant did not waive its objections.

Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP § 2030.260(a).)

Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP § 2031.260(a).)

Defendant’s Opposition argues:

Lastly, the lack of verification of discovery responses does not result in waiver of a responding party’s objections to the discovery requests. (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 46 Cal.Rptr.2d 925.) Therefore, despite BMW NA’s initial responses to Plaintiff’s written discovery being unverified, all of BMW NA’s objections to same are preserved and not subject to waiver as Plaintiff seeks.

(Def. Oppo. p. 3.)

Here, whether or not Defendant provided verifications with its initial responses on September 27, 2023 appears to be irrelevant because Defendant here did not provide timely responses, within 30 days after service of the discovery. In Food 4 Less Supermarkets, Inc. v. Superior Court, “Within the statutory period, defendants responded.” (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 653.)

Overall

The Court will hear argument. While it is not clear if Defendant served the September 27, 2023 responses on the proper email address for Plaintiff’s counsel, even if the Court assumes that Defendant served the proper email address on September 27, 2023, it appears that Defendant’s responses were not timely served because the discovery was propounded electronically by Plaintiff on August 22, 2023.

“If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.” (CCP § 1010.6(a)(3)(A).)

“Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days[.]” (CCP § 1010.6(a)(3)(B).)

Therefore, it appears as if Defendant waived objections by providing untimely responses on September 27, 2023.

Tentatively, the Court plans to GRANT Plaintiff’s three motions to compel responses because Defendant waived objections by not providing timely responses, and Defendant did not file motions for relief from waiver of objections. Therefore, the Court tentatively plans to order Defendant to provide verified, code-compliant responses, without objections, to Plaintiff’s Form Interrogatories, Nos. 1, 3.1, 3.2, 4.1, 12.1 – 12.6, 13.1, 13.2, 14.1, 15.1, 17.1, 50.1- 50.6, Plaintiff’s Request for Production of Documents, Set One, and Plaintiff’s Special Interrogatories, Set One.

Neither party seeks sanctions.

Website by Triangulus